Supreme heat up as political egos, confusion reign against apex court

That the Supreme Court has lately been at the centre of heavy criticism is not in doubt.

From what has been termed as well orchestrated plan to weaken the institution by removing Chief Justice Martha Koome and six Supreme Court judges to previous reports of withdrawing security of the CJ to petitions calling for investigations into alleged misconduct or breach of judges’ conduct, the topmost court has been at the centre of a storm.

But the judges have put up a brave fight against attempts to remove them from office. The Kenya Magistrates and Judges Association (KJMA) has also come out to condemn the turn of events.

Already, KMJA President Stephen Radido has condemned the public attacks on the Judiciary saying it was part of a well-orchestrated plan to weaken the institution.

“It is no secret that there has been a scheme to weaken and ultimately destroy the institution of the Judiciary through crusades in social media,” Radido said recently.

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Questions abound on what the country would look like without the apex court, given the heavy responsibilities that rests on it.

The Supreme Court derives its mandate from the Constitution, which gives it powers to exercise adverse jurisdictions, including exclusive original rights, jurisdiction to offer advisory opinion, appellate jurisdiction, appeal from tribunals formed under Article 168(8) of the Constitution and applications emanating from declaration of state of emergency, among other roles.

The apex court has made many critical decisions, including nullifying the presidential election results in 2017 after a hotly contested exercise sending a sitting President back to the drawing boards.

Today, however, a number of senior lawyers are raising issues  with the conduct of the current Supreme Court judges.

Former Law Society of Kenya (LSK) president Nelson Havi argues there will be no constitutional vacuum or crisis if the seven judges of the Supreme Court are removed should the charges of gross misconduct and misbehavior be established.

“On June 16, 2016, Justice Willy Mutunga, Lady Justice Kalpana Rawal and Justice Philip Tunoi retired at the same time, leaving the Supreme Court without a President or Deputy President for four months, without quorum to undertake any of its functions and the entire country without a Chief Justice or Deputy Chief Justice,” Havi posted on his X account.

City lawyer Ahmednasir Abdullahi has also sustained his onslaught against the judges, who subsequently banned him, his law firm and associates from appearing before the apex court.

“Hon Chief Justice, our contempt for the Supreme Court is not personal. It is doctrinal and jurisprudential. You know too well how many times we pleaded with you to stop the ‘jurispesa’ business in your court...and you ignored our plea… Our beef with the court is not “hot air”…its painfully serious,” Ahmednasir said on his X platform.

The judges however received a temporary relief  after JSC halted the hearing of petitions to remove them, citing interim court orders that bar it from proceeding with the cases.

The legal battle emanates from a total of eight petitions, six of which were filed by Supreme Court judges themselves, with Koome stating that their removal would cause a constitutional crisis at the court.

LSK has also stated that the Supreme Court has come under public spotlight on account of disquieting allegations of gross misconduct, incompetence, and breach of the Judicial Service (Code of Conduct and Ethics) Regulations by the judges of the Supreme Court of Kenya.

LSK President Faith Odhiambo has raised concerns that both allegations against seven Supreme Court Judges, and how they have been handled, have been undertaken through a disruptive approach.

“It is our view that the relevant institutions involved in this process should be more constructive to enable a legitimate and credible consideration of this matter which is of considerable public importance. Unless this shift is achieved, there may be the unintended consequence of embarrassing the apex court, and the entire Judiciary,” the LSK said.

According to Odhiambo, the elevated status of Supreme Court holds grave significance in the administration of justice and the delicate nature of the current situation cannot be understated.

“The establishment of the Supreme Court under Article 163 of the Constitution affirms its importance by emphasizing the finality of determinations of the Supreme court, which are binding on all other courts. The delicate nature of the current situation, therefore, cannot be understated,” Odhiambo said.

She argues that Article 168 of the Constitution contemplates the removal of any judge of the superior court from office, with no exception and the process begins with the filing of petitions before Judicial Service Commission (JSC) or by JSC commencing the process on its own.

Upon filing a petition, Odhiambo says the JSC is required to consider the petition and satisfy itself that it discloses grounds for the removal of a judge on various grounds, which include inability to perform the functions of the office due to physical or mental incapacity, breach of the code of conduct, bankruptcy, incompetence, gross misconduct or misbehavior.

“The appointment and removal of judges is a process that involves an interplay between the Judiciary, acting through JSC and the president. LSK will be closely observing the entire process. Further noting the nature and importance of the arguments before the courts, LSK will seek to be enjoined in the suits,” Odhiambo added.

Political commentator, Barrack Muluka has termed the recent events at Supreme Court as a game of musical chairs that is even distorting the hierarchy of litigation in the country.

“The fact that you are finding the Supreme Court judges themselves going to lower courts to seek vindication is all because of vested political interests which are keen not just to overthrow the judges but also to overthrow the established constitutional and legal order,” Muluka told The Standard.

According to Muluka, the strategy is to cause confusion within the Judiciary to a point where the country is going to say to itself:

“Let us revisit the entire structure of the Judiciary and even the powers that have been conferred upon it. You have seen that even the Ombudsman is attempting to summon the Chief Justice to respond, which I think is a terrible overreach.  But that is where we are. It boils down, I think, to the national CEO not being interested in the rule of law. The legislature is captured, the Executive is a one man show and political parties are being swallowed. I think these are signs of bad things that, if not stopped, will come,” Muluka added.

Kivutha Kibwana, a constitutional law don and former governor, has written an open letter to President William Ruto, reminding him  that he religiously promised to restore the dignity of the Judiciary and police.

Ruto even appointed judges that his predecessor had declined to designate but, two years down the line, Kivutha claims that Ruto has waged war against the very Judiciary.

“To render in plain language, Mr President, you wish to negate the doctrines of separation of powers, checks and balances and independence of the Judiciary so as to assemble a compliant judiciary,” an excerpt from Kivutha’s letter says.

Mark Bichachi, another analyst, says the petition to remove the judges is ill advised, ill timed and motivated by logic that was faulty, amidst confusions as to majority and minority status. 

“The effect of removing all the judges would have leave a hole in the Judiciary that would divide the country and perhaps lead to a constitutional crisis,” Bichachi said.

In the midst of the back and forth on matters Supreme Court, the Commission on Administrative of Justice has summoned Koome and nine other members of Judicial Service Commission (JSC).

A letter signed by CAJ chairperson Charles Dulo indicated that Koome, among other JSC members, are expected to appear on March 24 and March 25 to answer allegations of ignorance and neglect of the Constitution.